STATE OF INDIANA		)	SS:	BEFORE THE INDIANA DEPARTMENT OF
		)
COUNTY OF MARION		)		ENVIRONMENTAL MANAGEMENT

COMMISSIONER OF THE DEPARTMENT					)
OF ENVIRONMENTAL MANAGEMENT,					)
					)
Complainant,					)
					)
	v.				)	Case No. 2014-22484-C &
					)	2014-22523-C

Willemsen dairy, llc,					)
					)
Respondent.					)

AGREED ORDER

Complainant and Respondent desire to settle and compromise this action without hearing or adjudication of any issue of fact or law, and consent to the entry of the following Findings of Fact and Order. Pursuant to IC 13-30-3-3, entry into the terms of this Agreed Order does not constitute an admission of any violation contained herein. Respondent’s entry into this Agreed Order shall not constitute a waiver of any defense, legal or equitable, which Respondent may have in any future administrative or judicial proceeding, except a proceeding to enforce this order.

I. FINDINGS OF FACT

1. Complainant is the Commissioner (“Complainant”) of the Indiana Department of Environmental Management (“IDEM”), a department of the State of Indiana created by Indiana Code (“IC”) 13-13-1-1.

2. Respondent is Willemsen Dairy, LLC (“Respondent”), which owns the facility with National Pollutant Discharge Elimination System (“NPDES”) Permit No. INA006199, located at 6615 W 500 N, in Frankton, Madison County, Indiana (“Site”).

3. IDEM has jurisdiction over the parties and the subject matter of this action.

4. Pursuant to IC 13-30-3-3, IDEM issued a Notice of Violation (NOV) via Certified Mail to Teunis Willemsen, Registered Agent for Willemsen Dairy, LLC.

5. Respondent is the owner of a large CAFO, confining 1,910 dairy cows and 288 dry cows.

6. During an investigation including inspections on May 20, 2014 and June 20, 2014, conducted by a representative of IDEM, the following violations were found:

Count I

Case No. 2014-22484-C

a. Pursuant to IC 13-30-2-1(1), a person may not discharge, emit, cause, allow, or threaten to discharge, emit, cause, or allow any contaminant or waste, including any noxious odor, either alone or in combination with contaminants from other sources, into the environment in any form that causes or would cause pollution that violates or would violate 327 IAC 15-16, a rule adopted by the board under the environmental management laws

As noted during the inspection on May 20, 2014, Respondent discharged water from the contaminated storm water pond into a tributary of Pipe Creek, a water of the state, in violation of 327 IAC 15-16.

b. Pursuant to 327 IAC 15-16-7(f)(1), there must be no discharge of manure, litter, or process wastewater pollutants to waters of the state.

As noted during the inspection on May 20, 2014, Respondent discharged from a clean storm water pond that was contaminated with process wastewater pollutants from Willemsen Dairy, LLC, into a tributary of Pipe Creek, a water of the state.

c. Pursuant to 327 IAC 2-1-6(a)(1), all surface waters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that do any of the following:

a) will settle to form putrescent or otherwise objectionable deposits;

b) are in amounts sufficient to be unsightly or deleterious;

c) produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

d) are in concentrations or combinations that will cause or contribute to the growth of aquatic plants or algae to such degree as to create a nuisance, be unsightly, or otherwise impair the designated uses; and

e) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

As noted during the inspection on May 20, 2014, Respondent allowed manure into a tributary of Pipe Creek, a water of the state, that was in an amount sufficient to be unsightly or deleterious, that produced color, odor, or other conditions in such degree to create a nuisance, which was in amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life, other animals, plants, or humans. The origin of the spill was Respondent’s contaminated storm water pond located at the Site.

d. Pursuant to 327 IAC 15-16-8(7), all permitted CAFOs must comply with the requirements of 327 IAC 19-13, specifically 327 IAC 19-13-1(e) where uncovered liquid manure storage facilities must have clearly identified markers to indicate manure levels relative to the approved freeboard elevation.

As noted during the inspection on May 20, 2014, Respondent did not have clearly identified markers to indicate manure levels relative to the approved freeboard elevation in three lagoons at the site.

e. Pursuant to 327 IAC 15-16-8(7), all permitted CAFOs must comply with the requirements of 327 IAC 19-13, specifically 327 IAC 19-13-1(c) where manure at the production area must be stored in an approved waste management system until removed for land application in accordance with 327 IAC 19-14.

As noted during the inspection on May 20, 2014, Respondent did not store all manure in approved waste management systems. Manure was being stored in an unpermitted calf hutch area.

f. Pursuant to 327 IAC 15-16-5(b), an owner or operator of a CAFO that is expanding to increase animal capacity or manure containment capacity, must submit an application for an individual NPDES permit required by 40 CFR 122.21 and 327 IAC 5-2-3, and obtain a separate construction approval under 327 IAC 19.

As noted during the inspection on May 20, 2014, Respondent expanded the CAFO, increasing the manure containment capacity without submitting an application for an individual NPDES permit and without obtaining a separate construction approval under 327 IAC 19.

Count II

Case No. 2014-22523-C

As noted during the inspection on June 20, 2014, one month following the initial release of process wastewater pollutants, Respondent discharged water from the contaminated storm water pond into a tributary of Pipe Creek, a water of the state, in violation of 327 IAC 15-16.

b. Pursuant to 327 IAC 15-16-7(f)(1), there must be no discharge of manure, litter, or process wastewater pollutants to waters of the state.

c. Pursuant to 327 IAC 2-1-6(a)(1), all surface wasters at all times and at all places, including the mixing zone, shall meet the minimum conditions of being free from substances, materials, floating debris, oil, or scum attributable to municipal, industrial, agricultural, and other land use practices, or other discharges that do any of the following:

a) will settle to form putrescent or otherwise objectionable deposits;

b) are in amounts sufficient to be unsightly or deleterious;

c) produce color, visible oil sheen, odor, or other conditions in such degree as to create a nuisance;

e) are in amounts sufficient to be acutely toxic to, or to otherwise severely injure or kill aquatic life, other animals, plants, or humans.

d. Pursuant to 327 IAC 15-16-8(7), all permitted CAFOs must comply with the requirements of 327 IAC 19-13, specifically 327 IAC 19-13-4(c) where if a spill reaches waters of the state, the following procedures must be followed:

a) As soon as possible, but within two (2) hours of discovery, communicate a spill report to the department of environmental management, office of land quality.

b) Submit to the Indiana Department of Environmental Management, Office of Land Quality a written copy of the spill report if requested in writing by the department.

c) Except from modes of transportation other than pipelines, exercise due diligence and document attempts to notify the following:

i. For manure releases or spills to surface water that cause damage, the nearest affected downstream water user located within ten (10) miles of the spill and in the state of Indiana.

ii. For manure releases or spills to soil outside the facility boundary, the affected property owner or owners, operator, or operators, or occupant or occupants.

As noted during the inspection on June 20, 2014, Respondent failed to report a spill of manure into a tributary of Pipe Creek. The origin of the spill was Respondent’s contaminated storm water pond located at the Site.

7. In recognition of the settlement reached, Respondent waives any right to administrative and judicial review of this Agreed Order.

II. ORDER

1. This Agreed Order shall be effective (“Effective Date”) when it is approved by Complainant or Complainant’s delegate, and has been received by Respondent. This Agreed Order shall have no force or effect until the Effective Date.

2. Respondent shall comply with the statutes and rules listed in the findings above.

3. Within thirty (30) days of the Effective Date, Respondent shall comply with 327 IAC 19. Specifically, Respondent shall submit a new CFO application for approval for the transition to CFO.

a. After the CFO application has been submitted, Respondent shall respond to any NOD issued by the Confined Feeding Permitting Section within the stated timeframes in the NOD. If such timeframes are not met, IDEM may assess stipulated penalties as described in Order Paragraphs 8 and 9.

4. Immediately after the Effective Date, Respondent shall maintain a record of the facility’s required, per 327 IAC 19-13-1(f), weekly inspections. The inspections shall include inspecting all waste management systems for compliance with 327 IAC 19, approval conditions, documentation of freeboard measurements, and conditions of storm water management ponds.

a. A compliance inspection will be conducted to confirm records of self-monitoring before the enforcement case can be closed.

5. For six (6) months, beginning on the Effective Date, Respondent shall conduct and maintain in the operating record, a field screening of ammonia, nitrogen levels at the discharge point of the storm water pond while performing the facility’s weekly inspections.

a. A compliance inspection will be conducted to confirm records of self-monitoring before the enforcement case can be closed.

6. All submittals required by this Agreed Order, unless Respondent is notified otherwise in writing by IDEM, shall be sent to:

Trent Lindley, Enforcement Case Manager

Office of Land Quality

Indiana Department of Environmental Management

100 North Senate Avenue

Indianapolis, IN 46204-2251

7. Respondent is assessed and agrees to pay a civil penalty of Twenty Five Thousand Five Hundred Dollars ($25,500.00). Said penalty amount shall be payable to the Environmental Management Special Fund.

a. The civil penalty shall be paid in three installments, with the first installment of $8,500.00 due within thirty (30) days of the Effective Date, the second installment of $8,500.00 due within sixty (60) days of the Effective Date, and the third installment of $8,500.00 due within ninety (90) days of the Effective Date. Interest shall accrue on unpaid amounts at the rate established by IC 24-4.6-1-101.

8. In the event the terms and conditions of the following paragraphs are violated, Complainant may assess and Respondent shall pay a stipulated penalty in the following amount:

Paragraph	Penalty
Order Paragraphs # 3 or 3(a)	$250 per week late

9. Stipulated penalties shall be due and payable no later than the 30^th day after Respondent receives written notice that Complainant has determined a stipulated penalty is due; the 30^th day being the “Due Date”. Complainant may notify Respondent at any time that a stipulated penalty is due. Failure to notify Respondent in writing in a timely manner of stipulated penalty assessment shall not waive Complainant’s right to collect such stipulated penalty or preclude Complainant from seeking additional relief against Respondent for violation of this Agreed Order. Neither assessment nor payment of stipulated penalties shall preclude Complainant from seeking additional relief against Respondent for a violation of this Agreed Order; such additional relief includes any remedies or sanctions available pursuant to Indiana law, including, but not limited to, civil penalties pursuant to IC 13-30-4.

10. Civil and stipulated penalties are payable by check to the “Environmental Management Special Fund.” Checks shall include the Case Number of this action and shall be mailed to:

Indiana Department of Environmental Management

Office of Legal Counsel

IGCN, Room N1307

100 North Senate Avenue

Indianapolis, IN 46204-2251

11. In the event that the monies due to IDEM pursuant to this Agreed Order are not paid on or before their Due Date, Respondent shall pay interest on the unpaid balance at the rate established by IC 24-4.6-1. The interest shall be computed as having accrued from the Due Date until the date that Respondent pays any unpaid balance. Such interest shall be payable to the Environmental Management Special Fund, and shall be payable to IDEM in the manner specified in Paragraph 10, above.

12. This Agreed Order shall apply to and be binding upon Respondent and its successors and assigns. Respondent’s signatories to this Agreed Order certify that they are fully authorized to execute this Agreed Order and legally bind the party they represent. No change in ownership, corporate, or partnership status of Respondent shall in any way alter its status or responsibilities under this Agreed Order.

13. In the event that any terms of this Agreed Order are found to be invalid, the remaining terms shall remain in full force and effect and shall be construed and enforced as if this Agreed Order did not contain the invalid terms.

14. Respondent shall provide a copy of this Agreed Order, if in force, to any subsequent owners or successors before ownership rights are transferred. Respondent shall ensure that all contractors, firms and other persons performing work under this Agreed Order comply with the terms of this Agreed Order.

15. This Agreed Order is not and shall not be interpreted to be a permit or a modification of an existing permit. This Agreed Order, and IDEM’s review or approval of any submittal made by Respondent pursuant to this Agreed Order, shall not in any way relieve Respondent of its obligation to comply with the requirements of its applicable permits or any applicable Federal or State law or regulation.

16. Complainant does not, by its approval of this Agreed Order, warrant or aver in any manner that Respondent’s compliance with any aspect of this Agreed Order will result in compliance with the provisions of any permit, order, or any applicable Federal or State law or regulation. Additionally, IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of Respondent’s efforts to comply with this Agreed Order.

17. Nothing in this Agreed Order shall prevent or limit IDEM’s rights to obtain penalties or injunctive relief under any applicable Federal or State law or regulation, except that IDEM may not, and hereby waives its right to, seek additional civil penalties for the same violations specified in the NOV.

18. Nothing in this Agreed Order shall prevent IDEM or anyone acting on its behalf from communicating with the EPA or any other agency or entity about any matters relating to this enforcement action. IDEM or anyone acting on its behalf shall not be held liable for any costs or penalties Respondent may incur as a result of such communications with the EPA or any other agency or entity.

19. This Agreed Order shall remain in effect until IDEM issues a Resolution of Case letter to Respondent.

TECHNICAL RECOMMENDATION:				RESPONDENT:
Department of Environmental Management

By: _________________________				By: _________________________
	Nancy Johnston, Section Chief
	Enforcement Section			Printed: ______________________
Office of Land Quality
				Title: ________________________

Date: __________________				Date: _______________________


				COUNSEL FOR RESPONDENT:


				By: ________________________


				Date: ______________________

APPROVED AND ADOPTED BY THE INDIANA DEPARTMENT OF ENVIRONMENTAL
MANAGEMENT THIS		_____	DAY OF	________________________,	20__.

				For the Commissioner:

				Signed on September 2, 2015_
				Bruce H Palin
				Assistant Commissioner
				Office of Land Quality